The Environment Select Committee has released its reports on the Natural and Built Environment Bill (“NBE Bill”) and the Spatial Planning Bill. [Refer to our earlier articles here and here] While plenty will be said about the detail of the Bills in the coming period, below are our high-level observations on the Select Committee’s recommendations:
Environmental protection reigns supreme
The pendulum has swung well and truly towards environmental protection. This palpable shift is best illustrated by the recommended change in the purpose of the NBE Bill, which is now “to uphold te Oranga o te Taiao”. The single purpose must be achieved in a way that protects the health of the natural environment and, subject to this, enables the use and development of the environment in a way that promotes intergenerational well-being. Protection therefore clearly “trumps” use and development. This is a major change. It will create challenges for developers as the single purpose percolates through the planning system.
It’s (still) a behemoth
The Committee’s lengthy reports set out a raft of recommended changes. While the Committee has done a lot of tidying and restructuring, the NBE Bill remains a massive and unwieldy piece of legislation with over 800 sections and 16 schedules.
This is no more tinkering…
The Committee received over 3,000 submissions on the Bills, with over 350 submitters appearing at the hearings, representing the full spectrum of views. Many submitters raised significant concerns with the NBE Bill especially. The Committee was faced with a mammoth task and a highly compressed timeframe. It did not shy away from this task, recommending major structural and substantive amendments. Despite many submitters calling for more fundamental change, and the widespread reformatting recommended by the Committee, many of the core elements of the NBE Bill remain materially unchanged.
Given the importance of many of the Committee’s recommended changes (for example to the purpose of the NBE Bill discussed above), it is an unfortunate function of the legislative process that there is no further formal opportunity for public involvement.
There is a risk that the quality of the legislation will ultimately suffer for the speed with which, and manner in which, the reforms have been pushed through. This is evident from the fact that the amended versions of the Bills as reported back by the Select Committee still contain a number of errors and consistencies.
Bureaucracy busting… or burgeoning?
Both National and Act have lampooned the proposed reform, citing increased bureaucracy, cost, and complexity. The reform aims to achieve increased regulatory efficiency, including new provisions recommended by the Committee to reduce reliance on resource consent processes. That goal, while commendable, belies the complexity inherent in the NBE Bill.
NPF – false start?
The National Planning Framework (“NPF”) will sit at the top of the planning cascade, informing Regional Spatial Strategies, which in turn inform Natural and Built Environment Plans.
The Committee has confirmed what we already knew about the first NPF, due in August 2023 – that it will essentially be an amalgamation of current RMA national direction. Many key issues that the NBA will look to the NPF to resolve, such as the setting of environmental limits and targets, are not required to be included in the first NPF. The first NPF will therefore be an incomplete (in the scheme of the NBA) Frankenstein-like patchwork of policies and provisions prepared under the very different RMA legislative regime. As such, we have doubts how fit-for-purpose it will be.
It won’t happen overnight…
The Committee’s reports propose new and more detailed transitional provisions.
There will be a lengthy period of transition to the new resource management system. The total transition time could be up to a decade, and transition will occur at different times in different regions. Existing RMA documents/processes will continue to have effect until replacements under the new system are developed. This includes resource consent processes, which will continue under the RMA until a region switches to the new regime. Transition will be a slow burn. One exception is the proposed fast-track consenting process, based on the COVID-19 fast track legislation, which will be available immediately.
… and it may not happen at all:
While all indications are that the Bills will be passed into law within a couple of months, the fate of the reforms hangs on the upcoming general election. Despite both major parties agreeing on the need for RM reform, National has stated that it will do away with the reforms by Christmas, if it wins the election. The potential for the reforms to be here-today-gone-tomorrow creates fundamental uncertainty for all system users. This is on top of the uncertainty with the substance of the reforms.
While perhaps naive, you could be forgiven for lamenting the opportunity for – at least some – bipartisanship on such crucial reform.
The Committee’s report on the NBE Bill can be found here, and the Spatial Planning Bill report here. Please get in touch with us if you would like to like to discuss the reforms.